In Depth

The Indiana Court of Appeals recently issued an opinion that answered some complicated questions about the point at which
one person assumes a “duty” to another. But the panel did not reach a consensus, with one judge writing that the
majority opinion could have a negative impact on public policy.

People who ponder tort law say that the question of who owes a duty to whom has been endlessly debated. And while non-lawyers
may be unaware of these debates, the actions they take every day are affected by them.

“As we teach them how to drive, the obligation to stop at a stop sign – that kind of thing – we are teaching
people about duty,” he said. “We just don’t use the label.”

The case

In Jacob Key, Ted J. Brown and Sally A. Brown v. Dewayne Hamilton, No. 48A02-1007-CT-812, the question the appellate
court was asked to review for the first time is whether a driver who signals another driver to proceed onto a roadway is liable
for injuries sustained by a third party.

Jacob Key, a truck driver employed by Ted and Sally Brown, was traveling southbound on Indiana State Road 9 when he approached
a line of cars stopped due to a stoplight at the next intersection. Key stopped at the Market St. intersection, allowing enough
space for John Owens to make a left turn in front of him from a perpendicular street (from Market St. onto State Road 9).
For reasons not specified in the opinion, Key got out of his work truck, standing on the doorsill to check behind him for
oncoming traffic. He then gave an “all-clear” courtesy wave to Owens, who then pulled out in front of Key to turn
left. But Key had not seen motorcyclist Dewayne Hamilton traveling southbound in the adjacent lane. Hamilton, who was traveling
above the speed limit, crashed into Owens’ vehicle, and the force of the impact propelled Hamilton over Owens’
vehicle onto the roadway, seriously injuring Hamilton.

At trial, the jury returned a verdict in favor of Hamilton, allocating fault as follows: 5 percent to Hamilton, 45 percent
to Key and 50 percent to non-party Owens. Key and his employers appealed that decision.

Betsy Greene, a partner with Bloomington’s Greene & Schultz, said that what distinguishes this case from similar
“courtesy wave” cases is that, typically, when a driver simply waves another driver to proceed in front of his
car, the waver only guarantees that he will not crash into the driver he signaled. But the fact that Key involves
an injured third party adds a new wrinkle to the discussion of duty.

In the COA opinion, the majority agreed that when Key got out of his truck to look behind him to ensure the road was clear,
he assumed a duty to Hamilton, even though he didn’t see Hamilton at the time.

“I also am persuaded by the fact that this person really went to great lengths to determine that there was no traffic,
and under those circumstances I think it would be fair for that driver to rely upon that information,” Greene said.

Judge Paul Mathias wrote in his dissent that Key’s behavior in thoroughly checking for traffic was laudatory. “Yet
the majority opinion effectively penalizes drivers such as Key, who at least try to discern whether there is any oncoming
traffic, by exposing them to liability for any resulting collision,” Mathias wrote.

The majority opinion might result in drivers – wary of being held liable for possible consequences – being less
inclined to offer a courtesy wave, which in turn could result in more “road rage” on Indiana’s roadways,
he wrote.

“That was an interesting argument the judge used – kind of a parade of the horribles – because you did
this, the following things will occur,” Bodkin said.

Application of the law

The Court of Appeals occasionally travels to hear oral arguments, and in October, it took the Key case to Indiana
University Maurer School of Law. Don Gjerdingen, professor at the law school, was present for the oral arguments in the case.

While the opinion in Key seems narrow in that it rests largely upon the truck driver’s thorough examination
of traffic, Gjerdingen said that the case brought up many important issues that he discusses with students.

“If you decide to help a stranger or just to be the classic good Samaritan, what are the permissible legal consequences?
The classic rules will say something like this – at least in the United States – there is no legal obligation
to help a stranger, so if you just happen to be walking by on the beach and heard some screams, you don’t have to help
that person,” Gjerdingen said. But Indiana and many other states have created good Samaritan statutes that protect do-gooders
from legal action.

“You don’t have to stop, but if you do stop, we will make it harder to bring a legal action against you,”
he said. For example, Indiana Code 34-30-12 protects people who perform non-compensated emergency first aid from civil liability,
and I.C. 16-31-6 provides similar protections for emergency medical technicians.

In the Key case, Gjerdingen said that the issue Mathias presents in his dissent is interesting.

“In a way it’s a narrow point, but arguably, it isn’t,” Gjerdingen said. “As a practical matter,
what is it going to do? If every driver in the state of Indiana were to read (the opinion), what would the response be? That’s
the issue he was raising – would this lead to safer traffic or not?”

Protection for the injured

Bodkin pointed out that while the Key case may be narrow, it certainly assigns duty where duty previously did not
exist.

“Anytime we conclude that we’re going to expand duty, somebody’s going to lose, and somebody’s going
to win,” he said. “You have an entity that’s going to have to pay money now that never would’ve had
to pay money before.”

As a personal injury defense lawyer, Greene spends a lot of time working with focus groups to determine how they would assign
liability in a personal injury case, and those groups almost always tend to assign some fault to the injured party.

In the Key case, the jury awarded Hamilton $2.2 million in damages, with 45 percent of the liability assigned to
Key.

“Just from my perspective as a plaintiff’s lawyer, I’m wondering if the dissent is suggesting that Hamilton
should go uncompensated for the percentage of fault assigned to Key,” Greene said.

Bodkin can’t discern from reading the case what the insurance limits were of the people involved. Both Bodkin and Greene
mentioned that this case will likely influence how insurance companies determine negligence. But Greene said she doubts that
the case would have a major effect on Indiana drivers. And Bodkin pointed out that like so many tort law cases, some questions
may not be resolved – at least not immediately.

“The debate can go on for a long time depending on which piece of the case you want to pick up and carry,” Bodkin
said. “I think most of us would assume there’s no duty here on the part of the guy who waved him through. It appears
to me that the fact that the guy got out and looked seemed to be the tipping point. I wonder what would’ve happened
if he would’ve just looked in his rearview mirror. But that didn’t happen here. That’ll be the next case.”•

Conversations

0 Comments

Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or
hateful.

You are legally responsible for what you post and your anonymity is not guaranteed.

Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content
are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.

No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are
relevant to the topic at hand, but please do not link to objectionable material.

We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag
a post simply because you disagree with it.